Citation Nr: 1751053 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 13-33 763A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for left ear hearing loss. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active service from June 1974 to June 1978. This matter came before the Board of Veterans' Appeals (Board) from an October 2012 decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a videoconference hearing before a Veterans Law Judge (VLJ) in December 2014. A transcript is of record. The VLJ who conducted the December 2014 hearing is no longer employed by the Board. In a letter dated in September 2017, the Veteran was notified that the VLJ who conducted the December 2014 Board hearing was no longer employed by the Board and that the Veteran had the right to another Board hearing. The Veteran was given 30 days to respond. As no response was received, the Board assumes that the Veteran does not desire another Board hearing. FINDINGS OF FACT 1. In a November 2016 statement, the Veteran's represented informed the Board that the Veteran desired to withdraw his appeal for service connection for right ear hearing loss. 2. Left ear hearing loss is related to service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal by the Veteran with respect to the issue of entitlement to service connection for right ear hearing loss have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2017). 2. The criteria for service connection for left ear hearing loss have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Issue on Appeal A Substantive Appeal may be withdrawn in writing or on the record at a hearing on appeal at any time before the Board promulgates a decision. Withdrawal may be made by the Veteran or by his authorized representative. 38 C.F.R. § 20.204 (2017). In November 2016, the Veteran's representative expressed the Veteran's desire to withdraw the appeal for service connection for right ear hearing loss. Hence, there remains no allegation of error of fact or law for appellate consideration with respect to this issue, and it must be dismissed. Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 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. However, the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability, i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above, and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). A January 2004 VA treatment record reveals a finding that the Veteran's hearing was intact. A March 2004 VA treatment record reveals the Veteran's history of no auditory symptoms. An April 2009 VA treatment record indicates that the Veteran wanted an evaluation to determine his hearing threshold levels. He reported closed head injury in 1995 that was not associated with change in hearing. He reported "military (some shooting, right handed), occupational (powerhouse for 21 1/2 years), and recreational noise exposure (shooting)." Hearing acuity was "normal" for VA purposes. A March 2012 audiogram indicates that the Veteran did not have left ear hearing loss, as defined by VA. An April 2012 VA treatment record indicates that the Veteran had mild asymmetric hearing loss in the left ear. The record notes that the Veteran's left ear was "worse due to his significant right handed shooting in the distant past, some high frequency loss bilaterally from motorcycle riding." A September 2012 VA examination record revealed left ear hearing loss, as defined by VA. The examiner determined the hearing loss was less likely than not caused by or a result of service. The examiner noted that hearing sensitivity was normal at separation and there was no significant threshold shift when comparing enlistment and separation hearing evaluations. A February 2016 VA examination record reveals the determination that the Veteran's hearing loss was not at least as likely as not related to service. The examiner explained that the Veteran's hearing thresholds were normal at entrance and separation. The examiner added that according to the American College of Occupational Medicine Noise and Hearing Conservation Committee, a "noise induced hearing loss will not progress once it is stopped." The record reveals the Veteran's history of noise exposure from firearms, motorcycle use, and the lawnmower. Service connection is warranted for left ear hearing loss based on the April 2012 VA physician's determination that the Veteran's left ear hearing loss was consistent with firearms exposure. The evidence also shows an increase in the pure tone threshold at 6000 Hz for the left ear from entrance to separation. Resolving all doubt in favor of the Veteran, the Board finds service connection is warranted for left ear hearing loss. ORDER The appeal for service connection for right ear hearing loss is dismissed. Service connection for left ear hearing loss is granted. ____________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs