Citation Nr: 1751455	
Decision Date: 11/09/17    Archive Date: 11/17/17

DOCKET NO.  17-42 037	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	North Carolina Division of Veterans Affairs


ATTORNEY FOR THE BOARD

K. Neilson, Counsel



INTRODUCTION

The Veteran served on active duty from April 1954 to January 1957.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (West 2012).


FINDING OF FACT

The evidence is at least evenly balanced as to whether the Veteran's bilateral hearing loss is attributable, at least in part, to noise exposure in service.


CONCLUSION OF LAW

With reasonable doubt resolved in favor of the Veteran, the criteria for service connection bilateral hearing loss have been met.  38 U.S.C. §§ 1110, 1154, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C. § 1110; 38 C.F.R. §§ 3.303.  In addition, certain chronic diseases, including organic disease of the nervous system such as sensorineural hearing loss, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty.  38 U.S.C. §§ 1101, 1112, 1113 (West 2012); 38 C.F.R. §§ 3.307, 3.309 (2017).  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).

Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  Alternatively, for chronic diseases, as defined by regulation, shown in service, the second and third elements of service connection may be established through demonstrating chronicity or continuity of symptomatology in accordance with 38 C.F.R. § 3.303(b).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

For purposes of a hearing loss claim, impaired hearing will be considered a disability by VA when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 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.

In support of his claim for service connection for hearing loss, the Veteran submitted the report of a private audiological evaluation, dated in September 2012, supporting a diagnosis of severe high frequency sensorineural hearing loss, bilaterally.  The Veteran was also afforded a VA contract examination in September 2016.  A review of the audiogram conducted as part of the examination shows that the Veteran has a current bilateral hearing loss disability for VA purposes.  See 38 C.F.R. § 3.385.  The Veteran has also reported in-service noise exposure from weapons training and participation in a rifle competition.  Although the Veteran's military occupation specialty (MOS) was noted to be that of a personnel specialist, service personnel records document that he participation in arms qualifications in 1955.  The Veteran has also reported that following that qualification process, he was selected to participate in a team rifle competition, during which competition he was not issued hearing protection.  The Board finds no reason to discount the Veteran's lay testimony in this regard, and thus concedes that he did indeed have some in-service noise exposure for purposes of establishing an in-service event.  See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record).  Accordingly, the question is one of nexus.  

In this regard, the Board acknowledges that the evidence of record is insufficient to support a finding that that the Veteran suffered left or right ear hearing loss in service or sensorineural hearing loss within one year of separation from service, so as to afford the Veteran presumptive service connection.  See 38 C.F.R. §§ 3.307, 3.309.  Although no hearing loss disability was shown to have existed in service, or within one year of the Veteran's separation from service, service connection can still be established on the basis of post-service evidence of a nexus between current hearing loss and service.  38 C.F.R. § 3.303(d); see Hensley v. Brown, 5 Vet. App. 155 (1993).  In determining whether such a nexus exists, the Board must consider the Veteran's contentions in conjunction with the circumstances of his service.  38 U.S.C. § 1154(a).  

In the instant case, the contract audiologist who examined the Veteran in September 2016 indicated review of the claims folder, noting the following: (1) the Veteran's MOS was that of a personnel specialist; (2) results of a whispered voice test done at entrance into service showing normal hearing, bilaterally; (3) post-service treatment records showed a diagnosis of hearing loss in May 2003; and (4) the Veteran reported noise exposure from arms qualifications and participation in a rifle competition.  The audiologist then diagnosed the Veteran as having sensorineural hearing loss, bilaterally.  Regarding the likelihood that the Veteran's hearing loss is attributable to service, the audiologist opined that it was less likely than not that the Veteran's right or left ear hearing loss was caused by or the result of an event in military service.  As rationale for that opinion, the audiologist pointed out that the Veteran's MOS would have had a low probability of noise exposure and that the Veteran had "a significant history" of noise exposure outside of the military, to includes participation in "hunting/shooting almost 75 years without hearing protection" and riding "motorcycles about 60 years without hearing protection."  The audiologist also considered the Veteran's report that "he was in the rifle competition for 10 days" while in service, but determined that the Veteran's other, non-military activities were "at least as likely as not the cause of majority of current hearing loss."

Notably, in correspondence dated in November 2016, the Veteran disputed some of the contract audiologist's findings.  Specifically, the Veteran pointed out that it did not appear as though the audiologist considered his annual arms/firing qualifications performed in service.  The Veteran also took issue with the audiologist's statement that he had participated in hunting/shooting for nearly 75 years.  The Veteran reported that he was a deer hunter, did not hunt every year of his life, and rarely shot his rifle while hunting.  The Veteran also disputes that he rode a motorcycle for 60 years, stating that he had purchased a Honda motorcycle in 1978 and rode it until "a couple of years ago," at which point he sold it with only 10,000 miles on it.  He stated that he used the motorcycle occasionally for pleasure, and not as a regular mode of transportation.  In additional correspondence received in June 2016, the Veteran reported experiencing difficulty hearing after having participated in the rifle competition during service.  He stated that he did report this to the dispensary, but that there were no facilities available for him to have his hearing tested at that time.  He further stated that he did not thereafter complain of his decreased hearing acuity because he did not want to be disqualified from service.  

In the instant case, the Board finds reason to question the probative value of the contact audiologist's negative nexus opinion, as the stated rationale is somewhat contradicted by the Veteran's lay statements, the credibility of which the Board finds no reason to discount.  Indeed, it would appear that the audiologist relied heavily on the Veteran's pre- and post-service noise exposure from hunting and riding of a motorcycle to finds that the it is less likely than not that the Veteran's current hearing loss is not attributable to service.  As indicated by the Veteran, however, the audiologist overemphasized the extent of noise exposure from these activates.  Further, despite acknowledging the Veteran's report of in-service acoustic trauma, the audiologist does not seem to have considered whether that in-service noise exposure could have, at least in part, contributed to the Veteran's current hearing loss.  Indeed, it is clear, as indicated by the private audiologist who evaluated the Veteran in September 2012, that the Veteran's current hearing loss in noise-induced hearing loss.  Further, the Board points out that the audiologist stated that the Veteran's "activities outside of the military is at least as likely as not the cause of majority of current hearing loss" (emphasis added).  This statement leaves open the possibility that other acoustic traumas, such as those experienced by the Veteran in service, could have contributed to the Veteran's current hearing loss, albeit may not have been the sole or majority cause.

Overall, the Board finds that while the evidence is not unequivocal, after reviewing all the evidence on file, and when reasonable doubt is resolved in favor of the Veteran, the probative evidence suggests that the Veteran's currently diagnosed hearing loss is at least as likely as not attributable, at least in part, to acoustic trauma sustained in service.  As discussed, the Board finds reason to question the probative value of the contract audiologist's opinion.  However, rather than remand for an addendum opinion, the Board will resolve reasonable doubt in favor of the Veteran and award service connection for bilateral hearing loss.  38 C.F.R. § 3.304(c) (2017) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (VA may not order additional development for the sole purpose of obtaining evidence unfavorable to a claimant).  The Board finds it appropriate to do so given the Veteran's credible reports of noise exposure in service, his assertion of having experiencing diminished hearing ability shortly after the rifle competition, the clear indication in the medical records that the Veteran's current hearing loss is noise-induced hearing loss, and the ambiguity created by the contract audiologist's opinion.  Given this evidence, the Board finds that when reasonable doubt is resolved in favor of the Veteran, the Board finds that an award of service connection for bilateral hearing loss is warranted.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.



ORDER

Entitlement to service connection for bilateral hearing loss is granted.



____________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs