Citation Nr: 1746983 Decision Date: 10/20/17 Archive Date: 10/31/17 DOCKET NO. 15-41 425 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from March 1964 to March 1981 with additional service in Air National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2017, the Veteran testified at a videoconference hearing held before the undersigned Veterans Law Judge, and a copy of that hearing has been associated with the electronic 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 The evidence is in equipoise as to whether bilateral hearing loss is related to in-service noise exposure. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran's favor, bilateral hearing loss was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. Given the decision below, a detailed explanation of how VA complied with the Act is unnecessary. Governing law and regulations 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). Certain chronic disabilities, such as sensorineural hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2014). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). 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, or 4000 Hertz is 40 decibels (dB) 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. Except for some examination reports, the Veteran's service treatment records are unavailable. VA has a heightened duty to assist the Veteran in developing his claim since government records may have been lost. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The case law does not, however, lower the legal standard for proving a claim for service connection but, rather, increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46, 51 (1996). Analysis A December 2014 VA examination report shows puretone thresholds of 40 decibels or greater in at least three of the five relevant frequencies in both ears. Thus, there is a diagnosis of bilateral hearing loss disability for VA purposes. Accordingly, the question is whether his current bilateral hearing loss is related to active military service or events therein. See 38 C.F.R. § 3.303. With respect to an in-service injury or disease, the Veteran claims in-service noise exposure from being a fighter pilot. His assertion is supported by his discharge paper showing that his occupations in service included being a fighter pilot for over a decade of his decades-long service. The Board finds that the Veteran had in-service noise exposure. The December 2014 VA examiner opined that it is not at least as likely as not that the Veteran's bilateral hearing loss was caused by or a result of an in-service event. The examiner's basis was that audiograms in August 1963, October 1964, February 1973, February 1975, February 1978, and February 1980 revealed normal hearing bilaterally. The examiner noted that a 1981 separation audiogram was not located. The examiner added that a January 1983 audiogram revealed normal hearing bilaterally. The examiner concluded that the Veteran's hearing was normal at separation from service. The examiner stated that once military noise exposure is removed, hearing would not be expected to get worse. The examiner concluded that the current bilateral hearing loss is not due to or aggravated by military noise exposure. The Board notes that several of the audiograms cited by the VA examiner to include the February 1980 and January 1983 audiograms are not completely legible. Therefore, these audiograms do not indisputably show normal hearing bilaterally. There is also a separation audiogram dated in March 1981, but that audiogram is also illegible. Simply put, the VA examiner's medical nexus opinion is predicated on several audiograms showing normal hearing bilaterally, but these audiograms do not unquestionably show normal hearing bilaterally. In other words, the limited service treatment records do not unequivocally show that the Veteran had normal hearing bilaterally in service. Given this flaw in the VA examiner's opinion, the evidence is in equipoise as to whether bilateral hearing loss is related to in-service noise exposure. Thus, service connection is in order. 38 U.S.C.A. §§ 1110, 1131, 5107. ORDER Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs