Citation Nr: 1751383	
Decision Date: 11/09/17    Archive Date: 11/17/17

DOCKET NO.  16-00 809	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUE


Entitlement to service connection for bilateral hearing loss to include noise exposure.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

M. Franklin, Associate Counsel





INTRODUCTION

The Veteran had active service from February 1958 to February 1961.

This case comes before the Board of Veterans' Appeals (Board) on appeal from an September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a) (2) (West 2014).


FINDING OF FACT

Resolving any doubt in the Veteran's favor, his bilateral hearing loss is causally related to in-service acoustic trauma.


CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss have been met.  38 U.S.C.A. §1131 (West 2014); 38 C.F.R. § 3.303 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

Service Connection

The Veteran is seeking service connection 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 military service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.

Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned.  The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013).

Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service.  Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1131, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.

For the purposes of applying VA laws, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

The Veteran filed his service connection claim for bilateral hearing loss in May 2014, which was denied in a September 2014 rating decision.  The Veteran asserts that he has bilateral hearing loss as a result of his active service, to include military noise exposure.
The Veteran's service record shows that his military occupational specialty was Ammo Storage Specialist during his active service.  The Veteran reports that he was exposed to weapon fire and explosives during service.  As such, exposure to acoustic trauma is conceded.  38 U.S.C.A. § 1154(a).

The Veteran's STRs show that at his entrance examination in February 1958 and discharge physical in December 1960, he underwent a whisper test.  However, the Veteran was not afforded audiometer testing at these examinations.

In January 2015, the Veteran underwent a private hearing test.  The Veteran reported longstanding hearing problems of gradual onset.  The Veteran did not report tinnitus or dizziness.  The examiner diagnosed mild sloping to profound sensorineural hearing loss and recommended hearing aids in order to improve speech understanding.

In July 2017, the Veteran was afforded a VA examination.  The examiner had the opportunity to review the Veteran's claims file, interview the Veteran, and conduct an examination.  Audiological testing showed:






HERTZ



500
1000
2000
3000
4000
RIGHT
75
85
95
100
105
LEFT
75
90
100
105
105

The average decibel loss is 100 in the left ear.  The average decibel loss is 96 in the right ear. The Veteran had a Maryland CNC of 30 percent in the right ear and 28 percent in the left ear.  The examiner diagnosed the Veteran with sensorineural hearing loss bilaterally and hearing loss for VA purposes.  The examiner noted that at the time of entrance and separation, only a whisper test was performed.  She explained that a whisper test is not a reliable test of hearing.  In addition, the examiner noted that the Veteran's MOS was Ammo Storage Specialist, and the Veteran reports exposure to weapons and explosives during service.  She opined that the Veteran was exposed to hazardous noise while in service and therefore the Veteran's hearing loss is at least as likely as not related to military noise exposure.  

Here, the examiner has determined a 50 percent probability that the Veteran's hearing loss is linked to his in-service MOS.  Furthermore, VA regulations do not require hearing loss for VA purposes to be present during service.  Rather, hearing loss, if sensorineural in nature, is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service.  

Here, the Veteran served on active duty and his exposure to acoustic trauma has been conceded.  The Board also considers as highly probative the Veteran's competent and credible history of continuity of symptomatology of hearing loss symptoms since accepted in-service acoustic trauma.  

The Board is satisfied that this evidence is consistent with a finding of continuity of symptomatology.  As such, the criteria for service connection for bilateral hearing loss are considered to have been met, and service connection is granted.

In light of this result, a detailed discussion of VA's various duties to notify and assist is unnecessary (because any potential failure of VA in fulfilling these duties is harmless error).


ORDER

Service connection for bilateral hearing loss is granted.


____________________________________________
MATTHEW W. BLACKWELDER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs