Citation Nr: 1735682 Decision Date: 08/28/17 Archive Date: 09/06/17 DOCKET NO. 12-35 415 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD H. Ahmad, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1960 to August 1964. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Appeals (VA) Regional Office (RO) in Boise, Idaho. The Veteran testified before the undersigned at a July 2014 hearing. A transcript of that hearing is of record. In a February 2015 decision, the Board denied the claims for service connection for bilateral hearing loss and tinnitus. The Veteran appealed to the United States Court of Appeals for Veterans Claims. In an October 2015 Order, the Court granted a Joint Motion for Partial Remand, and remanded the claim for hearing loss for action consistent with the terms of the Joint Motion. In August 2016, the Board remanded the claim for hearing loss for further development and established service connection for tinnitus. In light of treatment records that have been obtained and associated with the record, performance of the requested examination, and the further adjudicatory actions taken by the RO, the Board finds that there has been substantial compliance with the prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141 (1999). FINDINGS OF FACT 1. The Veteran was exposed to acoustic trauma during active service. 2. The evidence is in relative equipoise as to whether current bilateral hearing loss is related to in-service acoustic trauma. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110 (West 2014). Establishing service connection generally requires competent medical or lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a relationship between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In addition, certain chronic diseases, including sensorineural hearing loss (as organic diseases of the nervous system), may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016). The Veteran maintains that he has a current bilateral hearing loss disability which is the direct result of noise exposure during active service. The Veteran specifically asserts that he developed hearing loss as a result of in-service exposure to traumatic noise during the performance of duties working on the flight deck and with sandblasting equipment, and that those disabilities have continued to worsen since service. At the July 2014 hearing, the Veteran testified that he was exposed to acoustic trauma immediately prior to service separation in August 1964, but following his service separation examination, while sandblasting paint off of pools for multiple days. The Veteran reported that the sandblasting machine was so loud that he could not hear anything around him. He was not provided any ear protection. The Veteran reported at that time his ears hurt, and that at the end of each day, it was hard for him to hear anything for a couple of hours. The hearing eventually returned, but that repeated each day of sandblasting. The Veteran was first examined for hearing loss in 1992, at which time he was fitted for hearing aids. The Veteran displayed a mild low frequency loss in both ears, and a profound loss at and above 2000 Hertz in both ears. At a December 2010 VA audiological examination, the examiner diagnosed mild sloping to severe bilateral sensorineural hearing loss. The audiogram shows that the Veteran has a current bilateral hearing loss disability for VA purposes, as the Veteran had bilateral puretone threshold levels of 40 decibels or greater at all frequencies. 38 C.F.R. § 3.385 (2016). For the purposes of applying the laws administered by VA, 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 (2016); Hensley v. Brown, 5 Vet. App. 155 (1993). The examiner noted that the Veteran experienced service noise exposure during service working on the flight line, from vehicles and equipment, and while painting aircraft buildings. The Veteran reported that he was not provided hearing protection during service. The examiner opined that due to the fact that no hearing loss was present at the separation examination, hearing loss was less likely than not caused by or a result of military noise exposure. At a December 2016 VA audiological examination, the examiner noted a diagnosis of bilateral mild to severe sensorineural hearing loss. The Veteran reported that he was exposed to noise in service as a crew leader working in an underground facility and sandblasting, including sandblasting pools without hearing protection immediately prior to being discharged. The examiner opined that the hearing loss was less likely than not related to in-service noise exposure as the service medical records were silent as to complaints, diagnosis, or treatment for hearing loss, and audiology testing on separation showed hearing within normal limits. The examiner explained that hearing loss due to noise exposure occurs at the time someone is exposed to the noise, so a normal audiogram subsequent to the noise exposure would verify that hearing had recovered without permanent loss. The Board notes that the Veteran's service medical records, specifically the separation examination, are silent for complaints of bilateral hearing loss. However, the Veteran testified at the July 2014 hearing that his exposure to traumatic noise while sandblasting occurred after his separation examination. The Veteran testified that he noticed decreased hearing acuity immediately after sandblasting while in service and that his auditory symptoms have progressively worsened since that time. Further, lay statements from the Veteran's mother, and friend R.K., both stated that they noticed the Veteran's hearing loss immediately after service, and that the hearing loss has gotten worse. When audiometric test results do not meet the regulatory requirements for establishing a hearing loss disability at the time of separation from service, the Veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran is competent to report experiencing an in-service injury and resultant diminished hearing and additional auditory pathology in the form of hearing loss, as hearing loss is a condition with unique and readily identifiable features that are capable of lay observation. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Washington v. Nicholson, 19 Vet. App. 362 (2005); Barr v. Nicholson, 21 Vet. App. 303 (2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Accordingly, the Board finds the Veteran's account of experiencing in-service acoustic trauma and auditory symptomatology to be credible and consistent with the circumstances of his service. 38 U.S.C.A. § 1154(a) (West 2014); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Additionally, the Board finds the Veteran to be credible in his report of having auditory symptomatology during and since service. Thus, there is competent and credible lay evidence of record that bilateral hearing loss occurred following acoustic trauma during active service and has continued to progress since that time. That evidence suggests a continuity of symptomatology. The Board acknowledges that there are negative etiological opinions of record in December 2010 and December 2016 VA-ordered audiological examination reports. However, in an August 2016 decision, the Board found the December 2010 examination inadequate. Regarding the December 2016 opinion, the Board assigns less persuasive value to that opinion, as it did not adequately address the Veteran's lay assertions of onset, specifically the fact that the sandblasting that the Veteran contends caused his hearing loss occurred after the separation examination was conducted. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). While the examiner opined that the bilateral hearing loss disability was not due to service noise exposure, the examiner based the negative opinion on the absence of documented hearing loss upon separation. However, the Veteran has consistently stated that he was exposed to hazardous noise after the separation examination, and lay testimony indicates hearing loss was noticed after discharge from service by the Veteran and his friends and family. Further, regulations do not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. 38 C.F.R. § 3.385 (2016); Hensley v. Brown, 5 Vet. App. 155 (1993); Ledford v. Derwinski, 3 Vet. App. 87 (1992) (lack of documented hearing loss while in service is not fatal to a claim for service connection.). In sum, the Veteran has competently and credibly reported a continuity of symptomatology of bilateral auditory pathology in the form of decreased hearing acuity during and since active service. Charles v. Principi, 16 Vet. App. 370 (2002); Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001). That report of a continuity of symptomatology suggests a link between current bilateral hearing loss and active service. Duenas v. Principi, 18 Vet. App. 512 (2004). There is no evidence that directly contradicts the Veteran's report and the Board finds the reports of continuity of symptomatology to be credible. Accordingly, the Board finds that the evidence for and against the claims is at least in equipoise. When the evidence for and against the claim is in relative equipoise, the Board must resolve all reasonable doubt in favor of the Veteran. Accordingly, reasonable doubt is resolved in favor of the Veteran and entitlement to service connection for bilateral hearing loss is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016). ORDER Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs