Citation Nr: 1751892 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 14-00 956 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Whether the severance of service connection for bilateral hearing loss was proper. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and Spouse ATTORNEY FOR THE BOARD Monica Dermarkar, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1970 to February 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which severed service connection for bilateral hearing loss, effective April 1, 2012. In April 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. FINDING OF FACT The evidence does not show that the grant of service connection for hearing loss was clearly and unmistakably erroneous. CONCLUSION OF LAW The criteria to sever service connection for hearing loss have not been met. 38 U.S.C. §§ 1110, 1154(b) (2012); 38 C.F.R. §§ 3.105(d), 3.303, 3.304, 3.307 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. In addition, there are specific notice requirements, which are specifically applicable to severance of service connection. 38 C.F.R. § 3.105(d), (i). Ordinarily, the Board must ensure that the VA has satisfied its obligation to afford the proper due process, including providing notice and assistance. In this case, however, the Board is granting in full the benefit sought on appeal. Therefore, the Board need not discuss whether there has been compliance with the VCAA or due process requirement for severance of service connection, as any noncompliance ultimately amounted to no more than harmless error. 38 C.F.R. § 20.1102. See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009). II. Severance of Service Connection The Veteran contends that his service connection for his bilateral hearing loss was improperly severed. Service connection for bilateral hearing loss was granted in September 2011. The RO severed service connection on the grounds that the grant was erroneous in light of an August 2011 VA examiner opinion stating that the Veteran's hearing loss is less likely as not caused by or a result of the Veteran's military noise exposure. The examiner also expressed that the Veteran's hearing loss is the cumulative effect of age and civilian noise exposure, with the Veteran's military noise exposure having no significant effect. Service connection will be severed only where evidence establishes that a previous grant of service connection was clearly and unmistakably erroneous with the burden of proof being on the Government. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105. "Clear and unmistakable evidence" is an "onerous" evidentiary standard, requiring the error to be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). Notably, VA regulations afford certain protections with respect to a disability that has been service-connected for longer than 10 years. 38 C.F.R. § 3.957 (2017). Because the Veteran's bilateral hearing loss has not been service-connected for more than 10 years, such protections need not apply in this case. Impaired hearing will be considered a disability for VA purposes when the auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) are 40 decibels (dB) or more; or when the thresholds for at least three of these frequencies 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 (2017). The Veteran served in the Airforce from June 1970 to February 1974 and his military occupation was pavement maintenance. A review of the Veteran's service personnel records document that the Veteran performed duties as a ground maintenance specialist with one performance report referring to the Veteran having had to seal or jack-hammer out an replace numerous frost boils. The Board acknowledges the VA examination report of record which states that the Veteran's hearing loss is the cumulative effect of age and civilian noise exposure, with the Veteran's military noise exposure having no significant effect. However, the Board finds it significant that the service treatment records reveal an in-service threshold shift upon separation from service. Moreover, the Veteran has provided testimony that he had hearing problems in service and since separation from service. See April 2017 Board hearing transcript. This testimony is supported by the contemporaneous evidence that documented an in-service threshold shift. Thus, competent and credible evidence pre-dating the RO's grant of service connection provide evidence of hearing loss in service. In addition, the August 2011 VA examiner stated that the Veteran's service-connected tinnitus is a logical consequence of exposure to noise and that the Veteran's military occupational specialty had a moderate rate of noise exposure. The examiner concluded that the Veteran's testimony of frequently working near the flight line was compelling and therefore the examiner found that the Veteran's tinnitus was a result of military noise exposure. The Board finds the examiner's statements regarding hearing loss and tinnitus to be contradictory. In light of the foregoing, the Board finds that there was and is a tenable basis to support the RO's grant of service connection for hearing loss. VA has not met the high evidentiary burden of showing clear and unmistakable error; thus the severance of service connection for hearing loss was improper. ORDER Service connection for the Veteran's bilateral hearing loss is restored. ____________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs