Citation Nr: 1751393 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 15-20 016 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for bilateral sensorineural hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. Choi, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1956 to September 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision of the Regional Office (RO) in St. Petersburg, Florida, which in pertinent part, denied service connection for bilateral sensorineural hearing loss. Since issuance of the statement of the case (SOC) in April 2015, additional evidence has been received by the Board. The Veteran's substantive appeal was received after February 2, 2013 (received by VA in May 2015); therefore, this evidence is subject to initial review by the Board unless the Veteran explicitly requests consideration by the Agency of Original Jurisdiction (AOJ), which he has not. 38 U.S.C.A. § 7105(e) (West 2014). As such, the Board may consider this evidence in the first instance. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2014) and 38 C.F.R. § 20.900(c) (2017). FINDINGS OF FACT 1. Bilateral sensorineural hearing loss for VA purposes is currently shown. 2. The Veteran was exposed to loud noise (acoustic trauma) while in service. 3. The current bilateral hearing loss is etiologically related to in-service noise exposure. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, bilateral sensorineural hearing loss was incurred in service. 38 U.S.C.A. §§ 1112, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. §3.303(a). Service connection may be granted 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). The Veteran is currently diagnosed with bilateral sensorineural hearing loss (as an organic disease of the nervous system), which is listed as a "chronic disease" under 38 C.F.R. §3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" in-service symptoms and "continuous" post-service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. §5107; 38 C.F.R. §3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran asserts that bilateral sensorineural hearing loss is due to in-service noise exposure from working in an engine room while serving in the Navy as a Machinist's Mate. In a March 2013 statement, he described how his hearing acuity had progressively declined over the years since service separation. For VA purposes, 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 (Hz) is 40 decibels (dB) or greater, the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater, or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. §3.385. Additionally, "the threshold for normal hearing is from 0 to 20 dBs [decibels], and higher threshold levels indicate some degree of hearing loss." See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). As noted above, the Veteran currently has a bilateral hearing loss disability that meets the VA regulatory criteria at 38 C.F.R. §3.385. A March 2014 VA audiometric examination report shows pure tone thresholds of 40 dB or greater at 1000 Hz through 4000 Hz in both ears, and 40 dB or greater at 500 Hz in the right ear. There is no indication that the audiometric results are unreliable or otherwise inadequate. The report conveys that the Veteran was diagnosed with bilateral sensorineural hearing loss. Therefore, a current disability of bilateral sensorineural hearing loss is established. Next, the Veteran was exposed to loud noise (acoustic trauma) while in service. Military personnel records reflects that he served as a Machinist's Mate in the Navy. According to his August 2016 statement, he worked in an engine room of a destroyer warship for three years, which resulted in constant exposure to loud engine noises. He asserts that he was never provided any hearing protection during active duty. Based on this evidence, in-service noise exposure is established. Finally, the evidence is at least in relative equipoise on the question of whether the current bilateral sensorineural hearing loss is related to the noise exposure in active service. On one hand, a September 1958 service treatment record reflects the Veteran complained of deafness in the right ear for the past few days. The service examiner noted that wax was observed in both ears and the ears were washed. Service treatment records do not reflect any further complaints, treatment, or diagnosis of hearing loss. This suggests that his deafness was not caused by noise exposure but rather by wax build-up. Both the March 1956 service induction examination and the September 1959 service separation examination shows the Veteran's hearing acuity was tested by using the whispered hearing test and found to be normal. This evidence tends to weigh against the claim. In a March 2014 VA audiometric examination, the Veteran was diagnosed with bilateral sensorineural hearing loss but the examiner was unable to provide an opinion as to the etiology of the bilateral hearing loss without resorting to speculation. The examiner explained that both the service induction and service separation examinations showed that the Veteran's hearing acuity was normal by whispered hearing tests; however, whispered hearing tests are not sensitive to high frequency hearing loss and are not considered valid measurements of hearing acuity. The examiner stated that any high frequency hearing loss that may have occurred during service may not have been detected. As such, it would be difficult to determine if any hearing loss occurred during the course of service without a valid measure of the Veteran's hearing acuity during service. Although the March 2014 VA examiner noted that it is "likely/possible" that aging, occupational and recreational noise exposure, and the Veteran's general health have contributed to the current bilateral hearing loss, the examiner stated that it would be speculative to apportion the degree of hearing loss to each of these possible etiologies. As the examiner was unable to determine the etiology of the Veteran's hearing loss, this examination is assigned lesser probative value. In a September 2016 medical opinion from Dr. L.H., a VA audiologist who had been treating the Veteran since October 2012, Dr. L.H. relayed that the Veteran reported working various odd jobs following service separation, and none of them involved being exposed to loud noises for any length of time. The Veteran also reported that he was provided with hearing protection and safety equipment on the occasions when he was around hazardous noises. Further, Dr. L.H. stated that all audiometric tests from 1987 to the present were reviewed and revealed progressive and severe high frequency sensorineural hearing loss in both ears. Dr. L.H. conveyed that the current bilateral hearing loss, based on the configuration of the audiograms of record, was consistent with hearing loss due to noise exposure and was also significantly greater than the normative date found for the Veteran's age. Because the Veteran reported using hearing protection post-service, Dr. L.H. concluded that any damaging effects from post-service noise exposure would be minimal. For these reasons, Dr. L.H. opined that the Veteran's current bilateral hearing loss was at least as likely as not due to military acoustic trauma. This evidence weighs in favor of the claim. Based on the foregoing, and resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence supports a grant of service connection for hearing loss. As service connection has been granted on a direct basis, there is no need to discuss entitlement to service connection on a presumptive or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. As such, the appeal is granted. ORDER Service connection for bilateral sensorineural hearing loss is granted. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs